Court Okays Police Cameras in Restrooms

Youngstown—An Ohio appeals court has ruled that police can hide video
cameras in public restrooms without warrants from courts. The decision puts
Ohio at odds with U.S. Supreme Court rulings that people in public restrooms
have a "reasonable expectation of privacy."

In a December 18 ruling, the Seventh Ohio District Court of Appeals in
Youngstown upheld the public indecency conviction of James Henry of Empire by
a Jefferson County jury in October, 2001.

The U.S. Supreme Court has routinely ruled against secret surveillance in
public restrooms, locker rooms, jail cells and dressing rooms, saying that
such cameras constitute illegal searches and thus violate the Fourth
Amendment.

Henry, an openly gay man, was arrested as a result of an investigation
conducted by Saline Township Police Chief Kenneth Hayes and Jefferson County
Prosecutor Bryan Felmet at an Ohio Department of Transportation rest stop on
Ohio 7 near the Ohio River between Toronto and East Liverpool.

During the five-month investigation of sexual activity there, video cameras
hidden in light fixtures recorded the action of every man who entered the men’s
restroom for shifts of eight hours at a time.

Henry, 47, was one of 13 gay, or suspected to be gay, men who were notified
of their arrest by mail in July. One of the men arrested had never been to the
rest area, though his car had.

Since two of the cameras monitored the parking lot, police could see if men
were accompanied on their visit to the rest area. Police did not arrest men
who arrived at the park with women, although in some cases those men walked
around the restroom with their genitals exposed.

Henry was in the restroom for a total of 47 seconds on May 9, 2001. The
tape shows Henry entering, standing at the urinal, and leaving the restroom.

But at the trial, prosecutors convinced a jury that because Henry stepped
back from the urinal before fastening his pants, his conduct could have been
interpreted as masturbation by someone walking into the restroom.

Jefferson County Common Pleas Judge Joseph Corabi allowed the tape, which
then became the only piece of evidence at the trial.

In their unanimous opinion, the three-judge panel said that Henry had
"no reasonable expectation of privacy so long as he remained in the
common area."

Chief Hayes had removed the privacy dividers between the urinals in order
to give the cameras a clearer view.

Those dividers have since been replaced. But that information did not come
out during the trial, and was not known by the appeals court.

Judge Mary DeGenaro wrote the decision for the court. At the August
hearing, DeGenaro made it clear to Pate that she would focus on Henry’s
conduct at the urinal, not whether or not the cameras constituted an illegal
search.

DeGenaro cited a 1987 Fifth District case where two male defendants were
arrested in a rest area pit toilet with no door lock having oral sex. That
court also said that the defendants had no right to privacy.

But unlike Henry’s case, where the only witness to any restroom activity
was a camera, an Ohio highway patrol officer had observed the men prior to
their arrest.

Another legal reference used by the court was a 1982 First District
decision where the court allowed University of Cincinnati security officers to
look under the short stall doors and through openings between the stall frames
to arrest people for sexual activity.

But unlike in Henry’s case, that restroom was marked with a sign reading
in bold red letters: "No Loitering—Under Police Surveillance."

A third case cited as supporting by the court involved cameras hidden
behind ventilator screens in a bathroom wall in 1980. In that case, the First
Ohio District Court of Appeals ruled the cameras constitutional. But unlike in
Henry’s case, the stalls in that restroom did not have doors and the police
taped only suspected offenders for short periods of time.

DeGenaro wrote that since the defendants in those cases had no reasonable
expectation of privacy, "we believe that an individual would have even
less of an expectation in the common areas of a restroom."

The judges then agreed with the prosecutor’s argument that Henry
"clearly wished to perform his sexual act of masturbation or simulation
of masturbation in plain view in the common area of the restroom . . . "

"Even if Henry did expect to keep his actions private, Ohio courts
have found society is not prepared to recognize as reasonable an expectation
of privacy by persons engaging in behavior in restrooms that goes beyond the
intended purposes of the restroom . . ." wrote DeGenaro.

The judges contend that because the video cameras did not see anything that
could not be seen by someone walking into the restroom, there was no search.

The judges noted that there is "uneasiness and discomfort" with
the idea of video cameras being placed in restrooms, but again, treated Henry’s
case as unique by saying, "camera placement in the present case limited
the view of the police officers to the common areas of the restroom."

"We concede that this type of continuous videotaping of a restroom may
catch unsuspecting innocent people in the act of doing embarrassing
things," conceded the court, but "the common areas of public
restrooms remain just that, common and public."

Pate disagrees.

"The camera is not an ordinary observer," he said.

Pate also takes issue with the court’s upholding the unclear language in
the state’s public indecency law.

Throughout the trial and this appellate decision, Henry was accused of
behavior that "could" or "might" offend someone, though
the prosecutors had to concede at trial that no person was offended, because
no person saw what the camera saw for 47 seconds.

For that reason, Pate wanted the use of the indecency law to be declared
unconstitutional.

"What is proof beyond a reasonable doubt with all this "could
have," "might have," and "should have"?" said
Pate. "It wasn’t."

While Judge Joseph Vukovich concurred with DeGenaro and Judge Gene Donofrio,
he wrote a second opinion expressing his unease with police putting video
cameras in restrooms without a warrant.

"I find it ironic that a sign warns a motorist that they are entering
a public area of the roadway where speed limits are enforced by radar, but a
motorist using a public restroom at a highway rest area has no warning that
their visit might be the subject of video surveillance," wrote Vukovich.

"The fact that the foregoing analysis of this court is correct as a
matter of law does little to ameliorate the repugnancy of such a
practice."

"I could come easily to a different conclusion with any change in the
facts presented in the appeal," Vukovich concluded.

Pate maintains that the video cameras violate the Ohio and U.S.
constitutions.

He and Henry have 30 days to file an appeal with the Ohio Supreme Court,
and will decide in January if they will do so. "We’re still swinging
the bat," said Pate.